When both of you apply: cross-applications, mutual AVOs and how NSW police decide who the “primary victim” really is

Police arrive at a house after a fight. Both people are upset. Both say the other one started it. One has a scratch on the arm, the other has a bruise that will not show for two days. Someone made the triple zero call, and in a lot of cases that fact alone is doing more work in the outcome than anything else that happened that night. By the morning, one of them is a protected person and the other is a defendant – and which way round it falls will shape the next two years of both their lives.

If you have been named as the defendant in an ADVO when you believe you were the one being hurt, or if you have applied for an order and now find one has been taken out against you as well, you are in the territory of cross-applications. It is one of the most difficult areas of NSW domestic violence practice, and one where the early decisions matter enormously.

What a cross-application actually is

A cross-application arises where each party seeks an apprehended domestic violence order against the other, either at the same time or in response to the first application. If both succeed, the result is cross-orders, sometimes called mutual AVOs: two separate orders, each naming one party as protected person and the other as defendant, arising out of the same relationship and often the same incident.

The mechanism is in the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Nothing in the Act prevents two orders existing in opposite directions. And under section 49, where police are investigating and form the view that a person has committed or is committing a domestic violence offence, they are obliged to make an application – a duty that, where police believe both parties have offended, can point towards applications against both unless there is good reason not to.

This is no longer a rare outcome

It used to be genuinely uncommon. It is becoming less so. BOCSAR examined this directly in a November 2025 bureau brief on cross-intimate partner violence, and the trend is unmistakeable. Events where police took legal action against both partners rose from 0.7 per cent of intimate partner violence matters with a legal proceeding in 2010/11 to 2.5 per cent in the year to February 2023.

Cross-ADVOs climbed far more steeply. As BOCSAR reported when releasing the study, orders where both partners were granted an ADVO against the other grew from 5.7 per cent in 2016 to 13.7 per cent in 2023. Set that against the scale of the system – more than 100,000 domestic AVOs in force in NSW at any one time, with police applying for around 98 per cent of them – and it becomes clear that a meaningful number of NSW households are now living under two orders at once.

The concept behind it all: the person most in need of protection

The policy problem driving all of this has a name. ANROWS ran a national research project on accurately identifying the person most in need of protection, examining the gap between what protection order law is meant to do and what happens when police attend a chaotic scene with two people making conflicting claims.

The central finding is one every reader in this situation should understand. Where someone has used force in response to a longer pattern of coercive control, a snapshot assessment at the scene can invert the picture completely. The person who is visibly angry, who has left a mark, who is not crying, or who has a prior record can look like the aggressor. The person who is calm and articulate can look like the victim. Neither presentation tells you who has been controlling whom.

The consequences of getting it wrong run in both directions. A genuine victim named as a defendant becomes reluctant to call police again, loses access to victim support services, and carries an order that will affect firearms licensing and employment for years. And a person who is genuinely at risk may end up on the wrong side of an order that a court later has to unpick.

How police approach it

NSW Police address this directly in their own Domestic and Family Violence Guidelines. The Guidelines acknowledge that misidentifying a victim has serious consequences, that the outcome of a police investigation is used by external agencies and in legal proceedings, and that officers receive training aimed at reducing the effect of unconscious and confirmation bias on their decision-making. They contain specific sections on misidentification and on cross-applications.

In practice, officers attending are looking at who called, the nature and location of any injuries, whether injuries are consistent with defensive action, the accounts given at the scene, any prior history on the police system, the state of the premises, and what any witnesses or children say. What they usually cannot see in the first hour is the pattern – the months of financial control, the monitoring, the escalating threats – that gives a single act of resistance its real meaning.

Why the court will not simply split the difference

Some people assume that if both parties have applied, the fair outcome is two orders. That assumption is wrong, and it is worth understanding why.

The test for making an ADVO, set out in section 16, requires the court to be satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another has reasonable grounds to fear, and in fact fears, the commission of a domestic violence offence or conduct amounting to intimidation or stalking – and that the conduct is, in the opinion of the court, sufficient to warrant making the order. As the Judicial Commission sets out in its Local Court Bench Book chapter on apprehended violence orders, section 17 then requires the court to consider the safety and protection of the protected person and any children affected, and to ensure the order imposes only those restrictions necessary for that purpose.

That test has to be satisfied separately for each order. A court making two orders is making two findings that two people each have reasonable grounds to fear the other. Sometimes that is genuinely the case. Often it is not, and a properly run defence forces the question rather than allowing a default to mutual orders.

The consent trap

Here is where most cross-applications go wrong for defendants. Under section 78, a court can make an order with the consent of the parties without needing to be satisfied of the statutory prerequisites, and whether or not the defendant admits any of the particulars in the application. That is presented at court, entirely accurately, as consenting without admissions.

It sounds costless. In a cross-application it very often is not. If you consent to an order against you while pressing your own application against the other party, you have handed the other side a document recording that you are a defendant on an ADVO. That will be used in family law proceedings, in any later criminal matter, and in the assessment of who was really at risk. Meanwhile the practical restrictions bite immediately – and because the two orders are separate, complying with one does not excuse contravening the other.

Consenting without admissions can still be the right call. But in a cross-application it is a strategic decision that should be made with advice, and made after seeing what the police brief actually contains, not in a courthouse corridor twenty minutes before the matter is called.

Living under two orders at once

This is the part people underestimate. Two orders means two sets of conditions, and they are not always mirror images. One may exclude you from the home while the other does not. One may have a no-contact condition while the other permits contact for arranging time with children.

Every contact then carries risk for both people. A message that breaches order A does not somehow cancel order B. And an invitation from the other party is not a defence to contravening an order made against you – the obligation sits on the defendant alone, as our article on why an invitation from the protected person will not save you on a breach charge explains in the intimidation context. Where children are involved and both parents are defendants, arrangements have to be built with the conditions of both orders in front of you.

What a properly run defence looks like

The work is evidentiary and it starts immediately. Photographs of injuries, taken the same day, with timestamps. Medical records. Text and call histories showing who was contacting whom, and in what tone, in the weeks before. Any recordings that already exist. Names of neighbours or friends who saw the pattern rather than just the night. Bank records where financial control is part of the picture.

Then the police material: the COPS event, body-worn video, the statements, the triple zero recording. Body-worn footage in particular has a habit of showing something quite different from the summary of facts, as our case study on a domestic violence common assault charge built on a light slap allegation demonstrates. Cross-applications are won on chronology – showing the court the sequence of conduct rather than the final ninety seconds of it.

It is also worth being realistic about the other risk in this area. Where an application is alleged to have been made on a knowingly false basis, separate criminal exposure can arise, as our article on the offence of making false accusations sets out. That is a serious allegation and not one to make lightly, but it is part of the landscape.

If police have already charged you

An ADVO application very often travels with criminal charges. The two run together, and the charge usually drives the outcome. Do not assume that the other party deciding they no longer want to proceed will end it, either – as we explain in detail in our article on why domestic violence prosecutions continue even when the complainant changes their mind, the decision belongs to the prosecution, not to the person named on the order.

The single most useful thing you can do at the scene and afterwards is simple. Do not argue your case to the officers, do not send a long explanatory message to the other party, and do not delete anything from your phone. Get advice first.

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Being named as a defendant when you believe you were the one at risk is one of the most disorienting positions in the criminal justice system. It is also one where early, properly evidenced work makes a genuine difference – because the picture police form in the first hour is not fixed, and courts are increasingly alive to the difference between a primary aggressor and a person who resisted one.

At National Criminal Lawyers, we appear in cross-applications and domestic violence matters across NSW Local Courts. We know how these decisions are made at the scene, how to test them on the brief, and when consenting is sensible strategy rather than a costly reflex.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.